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FCC Hearings at Stanford: Towards a Consensus on ISP Transparency?

Yesterday, the FCC held a second hearing in its investigation of Comcast's use of forged RST packets to interfere with BitTorrent and other P2P applications. Free Press has a page linking to written testimony, statements, and audio and video recordings from the Stanford hearing.

At the previous hearing at Harvard Law School, Comcast attracted criticism for filling the auditorium with paid attendees. This time around, the telcos declined to participate at all. They sent proxies in their place: a conservative think tank called the Phoenix Center, freelance tech pundit George Ou, and one ISP: Lariat.net of Wyoming. It's a pity that ISPs aren't willing to participate in public debate about their own practices.

EFF has argued that the FCC should use its position of leadership to clarify that ISPs should, at the very least, provide adequate disclosure of any discriminatory network management practices that they deploy (we are also trying to get similar information by promoting independent testing of ISP networks with our Test Your ISP project). This kind of transparency is essential for a properly functioning marketplace: the public must be able to know when their software doesn't work because it's buggy, and when it doesn't work because of interference by an ISP. Without this information, users don't know which tech support line to raise hell with, whether they need to switch to new software, or whether they need to switch to a new ISP.

Transparency and responsiveness is also essential for application developers to understand the way that their applications will have to fit into ISPs' networks.

We were very pleased to see that requirements for disclosure and transparency seemed to command a near-consensus amongst the Commissioners and those testifying. The devil will be in the details, of course: will disclosures be informative enough for programmers to work with and for consumers to make good decisions?

One prevailing point of confusion in the discussion was the relationship between the lack of information about network traffic in general (eg, how much of Internet traffic is P2P? What kind of P2P?), the lack of information about Comcast's discriminatory network management practices (what percentage of BitTorrent seeds has Comcast been reseting? How has that varied at different times, and in different locations across the country?), and the lack of information about discrimination by other ISPs (Cox Communications, for instance, discloses that it uses "traffic prioritization" and "protocol filtering", but we don't know if its techniques are precisely the same as Comcast's, or whether it is planning to phase them out). These are all separate known unknowns and we know the FCC should look in different places if it wants to resolve them.

Another interesting question raised by Commissioner Tate was how an FCC disclosure obligation or principle would fit together with new software tools to test ISPs. We think the answer is that both are required: disclosures by ISPs and independent tests by the public are complimentary; neither of them will tell us everything we'd like to know about the network, and each of them will act as a cross-check for the other.

In the mean time, the threat of intervention by the FCC has caused Comcast to eat a great deal of humble pie. They're promising to work with BitTorrent Inc — we hope they'll also work with the wider Internet community — to find less discriminatory ways to manage their network.

In closing, we doubt that RST forgery will be the last "network management" practice to spark consternation and controversy. But we hope that in future, it won't take the best part of a year of wrangling and an FCC proceeding before transparency and common sense start to prevail.